Congressional Action Is Required to Modernize Employment Based Immigration

President Obama’s announcement on November 20, 2014 regarding his planned Executive Action to improve the immigration system was accompanied by several administrative memorandums, including several that addressed the business community’s frustration with a system that has been cumbersome, lengthy, and unpredictable. One memo included a promise to review the PERM process with an effort to modernize and improve it. (For a general description of the PERM process, please see our previous post). The Department of Labor (DOL) issued a brief Fact Sheet explaining their concept of what it will mean to modernize this program.

While an effort to modernize the program, which will observe the 10th anniversary of the publication of the PERM regulations later this month, is appreciated, the tension between the statutory mandate of the labor certification requirement and the needs of the employers using this system must be addressed in a more comprehensive fashion. An Executive Order may be able to improve the current process, but a serious and sophisticated review of the goals and the processing of the program can only be completed through statutory reform.

The labor force and the needs of employers who need high skilled immigrant labor change at a pace that can only be described as dizzying. Many of the technologies we use and depend upon today were developed only within the last 10 years. We need review only a short list of these technologies, all of which were developed after 2005, to get a perspective on how our world has changed.

iPhone – debuted on June 29, 2007

Twitter – founded on March 21, 2006

Google Calendar – launched April 2006

Google Map Street View – launched May 2007

Chase Quick Deposit, launched in 2010

Incidentally, the iPhone and other smartphones that followed made it possible for mobile transactions like Chase Quick Deposit and Apple Pay.

As our expectations grow for better iPhone versions, more interactive Google Maps, and more efficient ways to pay merchants, employers struggle to fill the growing list of jobs to develop, leverage, design, and integrate various technologies in innovative ways. During the past fiscal year, the majority of over 70,000 PERM applications submitted by U.S. employers were for professional occupations in the Information Technology and Science fields.

The Labor Certification process is based upon a statute first incorporated into the Hart-Celler Immigration Act of 1965. This Act eliminated the national origin quotas that had guided immigration policy since 1924, and created immigration opportunities based upon offers of employment and separate categories to foster family reunification. This remains the basic framework of the law today. The employment categories included important provisions to protect American workers from employers who would seize the opportunity to hire immigrant labor at lower wages. Thus was born the concept of labor certification and the requirement to prove a shortage of U.S. workers “ready, willing, able, and qualified’ to fill the open position. In 1965, however, the workforce and the needs of employers were very different. Positions were easily defined and the requirements for any specific position could be simply stated.

The PERM process continues to provide an avenue for employers to seek qualified individuals in cutting edge fields of technology, science and business. However, the positions which are often the subjects of PERM applications do not fit into the neat categories of historical labor classifications.

Employers need people with superior mathematical, technical or engineering skills, and this may mean hiring the best and brightest foreign students who have completed their education in the United States. It is no longer sufficient in the whirling world of technology innovation to be skilled in technology as the focus has now turned from developing technology to using it in new and creative ways. Successful businesses have learned to assess large storehouses of data, and pull information from them that can now be applied to business models in ways that were inconceivable just a few years ago.

Thus, the PERM program exemplifies the conundrum of immigration policy. The law must encourage economic development by enabling employers to find and retain superior talent with the skills needed for cutting edge business and scientific innovation, and at the same time, protect American workers from losing their jobs or employment opportunities to foreign workers. Studies have demonstrated that at current immigration levels, immigrant labor expands the need for the labor pool, but of course, examination at the macro level does not always explain every individual’s experience. The difficult task for the Administration is to “modernize and update” this program while it seeks a balance between these competing concerns. While providing new ways to advertise for positions may be important, it is merely tinkering around the edges. The problem demands global revision, one that can reconcile the needs of the 21st century employer and the policy imperative to train and meet that demand with as much local talent as possible but to supplement the availability of the talent by enabling employers to recruit globally for the best and the brightest workers.

While the Administration has only modest goals in its quest for modernization of the PERM program, the attention to the issue should engender more serious study of the way in which these competing goals can be met to enhance our economy and make the immigration system work for us. It should be possible to benefit businesses, workers and the society and economy generally with an enlightened and modern policy. That will require Congressional action following a serious examination of the real issues, uncluttered with trite political rhetoric. We hope that the Administration’s actions start the conversation.

Porter Wright Morris & Arthur LLP

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